Symposium: And the winner is … pluralism?

Posted Wed, June 6th, 2018 11:36 am by Elizabeth Clark

Elizabeth A. Clark is Associate Director of the International Center for Law and Religion Studies at Brigham Young University’s J. Reuben Clark Law School. She joined an amicus brief of 34 legal scholars in support of the cakeshop in this case.

No one seems pleased with the result in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. In significant ways, both those supporting Jack Phillips, the baker, and proponents of Charlie Craig and David Mullins, the same-sex couple, lost. On the one hand, the Supreme Court refused to grant unqualified protection to those who conscientiously object to providing goods and services to same-sex couples, and at the same time the court shut down efforts to assert that all forms of discrimination affecting same-sex couples should be labeled mere bigotry. The court pushed for a more pluralist approach, noting both that “gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth,” and that “[a]t the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”

The Supreme Court’s decision was certainly not a complete win for those seeking religious exemptions to celebrating same-sex marriages. There is no clearly delineated protection for future bakers, florists or photographers who feel that providing cakes, flowers and photography for same-sex weddings would violate their religious principles. By focusing on the Colorado Civil Rights Commission’s failure to provide the “neutral and respectful” adjudication of Phillips’ religious claims that the free exercise clause requires, the court left open broader questions of compelled speech and free exercise.

Justices Stephen Breyer and Elena Kagan’s concurrence and Justices Ruth Bader Ginsburg and Sonia Sotomayor’s dissent all seemed to agree, however, that there is a significant distinction between cases involving standardized, off-the-shelf cakes and those involving custom-made cakes that unequivocally convey a message that violates the bakers’ religious beliefs. Counting noses and reading the tea leaves of the opinions suggests that in similar cases with more neutral adjudications, future bakers, florists and photographers will probably only prevail if they can persuasively make the argument that they are not objecting to the customers, but that the case involves “personal expression [of a] message … that [they] could not express in a way consistent with [their] religious beliefs.”

Justice Anthony Kennedy’s majority opinion made it abundantly clear that Employment Division v. Smith rules out religious exemptions for “a baker who offers goods and services to the general public and is subject to a neutrally applied and generally applicable public accommodations law.” The majority opinion’s discussion of standard free speech and free exercise claims ends with the broad language that “any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons.”

While those seeking broad religious exemptions are left displeased, the Supreme Court also offered little comfort to LGBTQ advocates who see only bigotry in religious-based objections to same-sex marriages. The majority opinion not only left open the very distinct likelihood that custom-made wedding services with expressive functions would be protected under free speech doctrines, but also explicitly rejected blanket hostility of state actors to religious claims. Quoting West Virginia Board of Education v. Barnette, a case involving a religious objection to a flag salute, the majority restated that “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”

In one of the most interesting aspects of the opinion, at least in terms of its precedential value, the Supreme Court gave more teeth to religion claims under Employment Division v. Smith, which holds that the free exercise clause gives priority to neutral, generally applicable laws over religious claims. Smith was refined first in Church of Lukumi Babalu Aye Inc. v. Hialeah, which held that neutral, generally applicable laws must really be generally applicable and cannot effectively target or discriminate against specific religious beliefs. Masterpiece Cakeshop now clarifies the “neutral” prong of the neutral, generally applicable laws requirement. Quoting Hialeah, the majority reinforces the point that the free exercise clause bars even “subtle departures from neutrality” on matters of religion and that the Constitution “commits government itself to religious tolerance” and calls into question situations in which there is “even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices.”

In Masterpiece Cakeshop, the Supreme Court identified this sort of non-neutral treatment of Phillips both in negative comments from the civil rights commissioners about religious claims generally and in the evidence of disparate treatment between Phillips’ religious conscience claims and other bakers’ non-religious conscience claims. The court noted how one of the Colorado commissioners described Phillips’ religious claim as “one of the most despicable pieces of rhetoric that people can use” because he “use[d] [his] religion to hurt others.” To the court, this was clear evidence of the commission’s failure to provide “the requisite religious neutrality that must be strictly observed.” Kennedy, in the majority opinion, stated that this commissioner’s statement disparages Phillips’ religion “in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere.”

Masterpiece Cakeshop thus represents significant pushback to those who would denounce religious freedom as mere bigotry while claiming to be neutral themselves. Public commentators on national media regularly and casually describe measures promoting religious freedom as “religious bigotry,” an “invitation to discriminate,”“not about religious freedom,”“a fig leaf for intolerance,” or the like. If this sort of language is used or relied on by legislators, or especially adjudicative bodies, it now can be considered clear evidence of lack of neutrality.

What, then, will be the result of Masterpiece Cakeshop? As a legal matter, at least as regards bakers, florists, photographers and their ilk, the decision will have marginal precedential value. Not only did the court duck the most common issues in these cases, but the laws governing LGBTQ discrimination in the marketplace and religious freedom are varied and state-specific. The essence of the case will be relitigated under a different standard in the 28 states which, unlike Colorado, have a adopted a higher standard, either as a matter of state constitutional law or through state Religious Freedom Restoration Acts, for the balance between religious claimants and the government interest. In those states, the religious liberty of individuals can only be limited by government when it uses the least restrictive means of furthering a compelling interest. In the five states that don’t have public accommodations laws or the 13 that don’t have ones that protect against sexual orientation discrimination, the facts of this case wouldn’t even reach litigation.

In truth, however, despite the press they have received, it seems there simply aren’t enormous numbers of religious freedom legal claims dealing with sexual orientation or same-sex marriage.

So what does the decision accomplish? As a practical matter, by denying the claims of the more absolutist partisans of religious freedom and LGBTQ rights, Masterpiece Cakeshop may open up a space for a more thoughtful examination of the interaction of LGBTQ rights and religious freedom, both of which reflect deeply felt worldviews and both of which offer strong dignity, equality and liberty claims. Masterpiece Cakeshop’s efforts to delegitimize completely hostile approaches towards both LGBTQ rights and religious freedom may empower those who seek areas where compromise is possible. This, at its best, could lead to significant protections for both LGBTQ rights and religious freedom, à la the Utah Compromise.

Every state debate and the national discussion will certainly be distinctive, but surely there are pressing issues on the agendas of those advocating LGBTQ rights and religious freedom that could be constructively addressed through thoughtful engagement and legislation once the bakers lose the national spotlight. The majority opinion in Masterpiece Cakeshop concludes with an exhortation that “these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.” If Masterpiece Cakeshop encourages this kind of mutual tolerance and fosters efforts to recognize the dignity both of LGBTQ individuals and of religious conscience, then perhaps pluralism will have won the day.

Recent Decisions

United States v. Stitt The term "burglary" in the Armed Career Criminal Act includes burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation.

Weyerhaeuser Company v. United States Fish and Wildlife Service An area is eligible for designation as “critical habitat” under the Endangered Species Act of 1973 only if it is habitat for the listed species; and the decision by the secretary of the U.S. Department of the Interior not to exclude an area from critical habitat under 16 U. S. C. §1533(b)(2) is subject to judicial review.

Mount Lemmon Fire District v. Guido State and local governments are covered employers under the Age Discrimination in Employment Act of 1967 regardless of the number of employees they have.

Current Relists

Conference of December 7, 2018

City of Escondido, California v. Emmons (1) Whether the U.S. Court of Appeals for the 9th Circuit erred in denying the officers qualified immunity by considering clearly established law at too high a level of generality rather than giving particularized consideration to the facts and circumstances of this case; (2) whether the lower court erred in denying the officers qualified immunity by relying on a single decision, published after the event in question, to support its conclusion that qualified immunity is not available; and (3) whether the lower court erred in failing or refusing to decide whether the subject arrest was without probable cause or subject to qualified immunity.

Hester v. United States Whether the rule of Apprendi v. New Jersey–which held that any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt–should apply to the imposition of criminal restitution.

In re Department of CommerceWhether, in an action seeking to set aside agency action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker—including by compelling the testimony of high-ranking Executive Branch officials—when there is no evidence that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Timbs v. IndianaWhether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.

Apple Inc. v. PepperWhether consumers may sue anyone who delivers goods to them for antitrust damages, even when they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense.

Download our App in the Apple Store

On November 13, Justice Sonia Sotomayor, Judge Jennifer Walker Elrod of the U.S. Court of Appeals for the 5th Circuit and Judge Susan Carney of the U.S. Court of Appeals for the 2nd Circuit presided over the final round of the 2018 Ames Moot Court Competition at Harvard Law School.